On Filling Vacancies

Nick Wirth

These days it seems as though the only organization that has vacancies to fill is the State Legislature. Recently we have witnessed a rash of departures from Salem, leading to a number of newly appointed State Representatives and Senators. This week we are watching yet another competitive appointment process with several candidates vying to replace Chip Shields in HD-43. A lot has been made of the candidates that went into today’s nominating convention, and even more no doubt will be made of the three candidates that made it out, as well as the Multnomah County Commission’s final decision. That’s not what I want to talk about. Rather, I think that in light of this streak of appointments we should reflect on the appointment process itself. To be blunt, it’s a terrible system from start to finish.

Let me be clear that my intent is not to critique the Senators and Representatives that have been appointed to office this year. On the contrary, each appointee clearly has been capable and qualified to represent their districts. Yet when it comes to the workings of our democracy, the means are often more significant than the ends.

By my count, so far this year we have witnessed five appointments to the legislature (Senators Edwards, Schrader, and Shields, and Representatives Doherty and Hoyle), with HD-43 bringing the tally up to six. That means that by the end of the month, over 399,000 Oregonians will be represented by at least one legislator whom they did not elect. Over 114,000 of those Oregonians will have elected neither of their state legislators. Instead, these Senators and Representatives were chosen by two groups; party Precinct Committee People and the respective districts’ County Commissioners. I do recognize that there’s some logic behind this configuration. It makes sense that an appointment shouldn’t tip the partisan scales in the legislature, so the respective party’s PCPs select several candidates. However, the appointee needs to be qualified and knowledgeable of the issues facing their district, so the County Commissioners make the final decision. In theory, it sounds like a decent system for selecting replacement legislators.

In practice, however, the appointment process is something else. First, having a nominating convention with PCPs effectively means that a completely arbitrary group of people will be selecting the final candidates for the seat. Normally, being a PCP during a non-election year would be a sign of a truly dedicated party member. Not so much in districts with fresh vacancies. Take SD-22, which just appointed Chip Shields to fill out Margaret Carter’s term. A few weeks ago, T.A. described the unusually high number of attendees at the local party meeting:

No, almost half of them were there to be appointed as Precinct Committee People (PCPs). Why the sudden and mass desire to be a PCP of the Mult Dems?

So 70-some people attended the monthly Mult Dems meeting so they’d be able to be part of the nominating convention on Sept 17th.

Those of us who are active party members and attend every month, supporting the county party on an on-going basis, know that we will not see most of the new PCPs again. Most of those who signed up as PCPs have no interest in supporting the party; they simply want a say in who replaces Sen Carter.

It’s understandable why people would be so much more interested in becoming a PCP immediately prior to a nominating convention. In a normal election for State Representative, your vote is only one out of around 25,000-30,000. But at today’s nominating convention for HD-43, each completely random person who volunteered to be a PCP comprised 1/79th of the electorate. I would also venture to guess with a pretty high level of confidence that the PCPs at these conventions are in no way representative (demographically or politically) of the broader electorate.

The County Commissioners who make the final decision face fewer questions of legitimacy than do the PCPs. However, there are still some potential issues that can arise from having politicians appoint politicians, especially ones they will likely have to work with. There is the question of whether Commissioners would feel comfortable denying the job to someone already holding a lower office for fear of damaging their working relationship. Just look at all three recently appointed Senators (imagine how awkward the next day at work would have been for the Clackamas County Commission if they had picked someone over Martha Schrader). There is also the question of how beholden the appointed legislators may feel to the commissioners that gave them their job. Or in many situations, some or even all of the county commissioners might have the opposite party affiliation of the future appointee, leading to political conflicts of interest. They might want to run for the seat themselves in the next election. I could go on, but I get the feeling that people realize why it could be a bad idea for one group of legislators to appoint another. That may be why Oregon pioneered the direct election of US Senators over one hundred years ago.

All of the problems during the appointment process are only compounded by the fact that once a legislator has been appointed, they're not going anywhere. State legislative incumbents by and large do not lose elections. A study published in 2000 in the Journal of Politics found that, in Oregon, incumbents running in state legislative districts that would likely be toss-ups in an open seat race had a 97% chance of being reelected. Oregon was tied for the 5th highest incumbency reelection rate in the country. Winning reelection after being appointed to their office certainly makes legislators far more legitimate and credible. That said, the reality is that any appointee is more or less guaranteed to be reelected once they are sworn into office. Incumbency has huge advantages, especially in low information races, and that makes the appointment system exploitable.

Just look at what happened in HD-26 last year. Late in the summer, it was clearly shaping up to be a tough environment for the Republican party. Rep. Jerry Krummel (R) had already announced he would not seek reelection, leading to an open seat race between Matt Wingard (R) and Jessica Adamson (D). In August, Krummel decided to retire early, triggering the appointment process despite the fact that the state legislature had absolutely nothing to do before the election. The Republican PCPs nominated Wingard and two others that actively promoted Wingard over themselves. The district's County Commissioners had no choice but to appoint Wingard, as he was the only candidate that actually wanted the position. A few days later, he sent a mailer to every voter in the district using taxpayer money. Getting a free lit piece is a pretty big deal in a low-information election, and sure enough a few weeks later Wingard won a tight race with 50% of the vote. The whole series of events was a farce, but it happened because of our process for filling state legislative vacancies.

LegvacanciesThe solution to all of this is clear; Oregon should switch to holding special elections in the event of legislative vacancies. That's how a majority of states do it. After researching the topic, I made this map of each state's system for filling vacancies. The yellow states use some form of appointment, often by the Governor and often from a list of candidates compiled by the former legislator's party (much like Oregon). The blue states all have special elections to fill vacancies. The green states use some combination of the two, generally depending upon how much time is left in the vacant term (the more time left, the more likely a special election will be held). Interestingly there's a pretty clear geographical divide; states in the eastern half of the country hold special elections, while western states make appointments (with a few exceptions). The main point, however, is that the states that have special elections come from a diverse set of populations, legislative sizes and degrees of professionalism, and ideological backgrounds. There's no reason why special elections would not work in Oregon, especially given that we already use them at other levels of government (we're one of only four states that only use them to fill US Senate vacancies).

This is clearly not the most pressing issue facing our state. Even so, it's a problem that is at the heart of how our democracy functions, and it one that is easily remedied. A possible counter-argument is that special elections would cost money at a time that the state has little to spare. That's a fair point. Even so, you could use the same logic against many other odd-year elections, from recalls to US Senate vacancies, and even to the initiative and referendum system (many other states manage with ballot measures after all). The fact is that a well-functioning, responsive democracy costs money, and you have to decide whether or not certain reforms are worth the price. If my state legislator was to retire, I know I would want the right to elect their replacement.

Comments

  • (Show?)

    I't's easy to talk philosophically about what is a good or bad system, but why not talk about results? Can people give some examples of what they think were bad results under this system?

    I don't mean cases where you might have chosen someone else, but cases where someone you think was clearly less qualified is appointed, or someone who is selected who is not representative of the district, or where what otherwise appears to be a miscarriage of justice has occurred.

    I'm a little concerned that this is one of those cases where the complaint seems to be, "Sure the system works in practice, but does will it work in theory?"

    I guess there is one way in which this process is totally different from our normal electoral process: It appears money plays virtually no role in the current appointment process, which you could say is downright Unamerican.

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    I'd like to see more competitive elections. Perhaps a simple change could promote that: do not permit appointed representatives to run for reelection.

  • LT (unverified)
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    Jack, I agree with you on this.

    I'm a little concerned that this is one of those cases where the complaint seems to be, "Sure the system works in practice, but does will it work in theory?"

    Dave, if that is what you want, do the research and find out how to change it, how the current system came into being, etc.

    In Marion County (where we have had to deal with everything from someone elected to higher office to an incumbent who died not long before the election) the system has worked quite well. Perhaps that is because, with county comm. of both parties, a candidate had to satisfy a cross section of folks to get the appointment.

  • (Show?)

    I understand the arguments from a good government point of view, but I don't think that the current system is all that bad.

    Vetting a candidate through the PCP voting process allows candidates to demonstrate that they have the support of their party. Giving county commissioners the final say ensres that the concerns of the broader community are taken into account.

    As to the influx of pcp's, I have two thoughts...

    1) The influx of PCP's that comes with these sorts of nominations as an opportunity for party building. You always want to bring new people into the party, and the party should be working to retain them once they've come.

    2) In my experience, both as a county chair and as a candidate for public office, I've found that many of the people who actually do the heavy lifting during the campaign season are not necessarily the people who are registered as PCP's or who regularly attend the meetings. Many of these new people are work horses who may have stronger connections to candidates than they do to the political party, but that's not necessarily a bad thing.

    YMMV.

  • (Show?)

    It's easy to talk philosophically about what is a good or bad system, but why not talk about results? Can people give some examples of what they think were bad results under this system?

    I don't mean cases where you might have chosen someone else, but cases where someone you think was clearly less qualified is appointed, or someone who is selected who is not representative of the district, or where what otherwise appears to be a miscarriage of justice has occurred.

    Well as I mentioned to in the post, I think the Wingard appointment was a miscarriage of justice. The whole thing was clearly set up to give him an advantage in the upcoming election, the PCPs intentionally sent 2 unqualified candidates to the County Commissioners so as to guarantee his appointment.

    But more generally speaking, I think it's impossible to say whether or not an appointee is truly representative of their district precisely because they were not elected. I similarly think that whether or not someone is more "qualified" is entirely subjective. If it simply means most years in office, then I suppose that the process has a good track record so far this year. But clearly that's not always the criteria that voters use. I can't speak for the voters of SD-22, so I think it's hard to say whether or not Chip Shields was the right choice out of 3 good candidates.

    I understand why people would argue that only results are important, but frankly I disagree with that reasoning. Process counts, especially in a democracy. Were Oregon's US Senators really that bad before we elected them directly, or filled vacancies with special elections?

  • George Anonymuncule Seldes (unverified)
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    LT, when you refer to the county commissioners of "both parties" in Marion County, which of the three Republican Commissioners do you have in mind?

    Legislative vacancies with any scheduled sessions remaining in the term offer a great opportunity to conduct an instant runoff voting election, which is specifically allowed by the Oregon Constitution. Vacancy announced, filing deadline 10 days later, election 20 days later, one election finds the majority favorite and we're done.

  • (Show?)

    Actually, I think the current system would be fine - with Dave Porter's caveat: do not permit appointed representatives to run for reelection.

    That, along with the recognition that we already require mid-term elections in state senate seats that are filled in years one and two, would be a pretty good solution - the people decide, but the district isn't left unrepresented for months on end.

  • Lord Beaverbrook (unverified)
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    Posted by: Jack Roberts | Oct 15, 2009 9:11:03 PM

    I't's easy to talk philosophically about what is a good or bad system, but why not talk about results? Can people give some examples of what they think were bad results under this system?

    That's the rub. My favorite example is appointing Senators. That was the only way it was done until the early 20th century. Philosophically, it's a horrid spectacle, so it was changed. The reality is that direct elections dramatically strengthened "the tyranny of the majority".

    Not exactly saying we should go back. Sen. Franken has been stellar so far, and I can't imagine he would have ever been an appointment. Or maybe he would have been there earlier, given that Jesse Ventura was the Governor. I'm just agreeing that you can easily get philosophically overbalanced on this one.

  • mlw (unverified)
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    Even if it's conducted in a fair manner, the appointments process creates the perception of these jobs being filled in smoky back room deals. Take a look at judicial elections - because most judges retire before the end of their terms, their replacements are appointed by the governor in a completely unaccountable process. Once they're incumbents, they traditionally run unopposed (unless they do something dumb to make the news). We have extremely few competitive judicial elections. Legislative elections, being partisan, at least get some interest from the public, but the incumbent still enjoys huge advantages. We'd be much better off with a system of special elections.

  • (Show?)

    Nice work, Nick. I enjoyed reading it. I think special elections are better than an appointment process, but if you have to have an appointment process, ours is better than some. The only real advantage of an appointment process is that it's done quickly. Oregon law requires that a replacement be seated within 30 days, but a special election can take several months. In our system, candidates are vetted twice, first by the precinct committee people, and then by the county commissioners, or even by the governor if the commissioners don't pick. It is quick and deliberate at the same time. As the person who helps county parties navigate through this process, I use the Wingard incident as an example of what not to do. This is serious business. The precinct committee people (in our case) are acting on behalf of the Democratic voters in the district, and it is their responsibility to provide the commissioners with at least three good choices.

  • (Show?)

    Actually, I think the current system would be fine - with Dave Porter's caveat: do not permit appointed representatives to run for reelection.

    Of course, because you wouldn't want the voters to have the opportunity to choose the person that the county commissioners believed was the best person for the job.

    Or alternatively, you wouldn't want the best qualified people who are actually interested in serving in the legislature to apply for the appointment, because they would then disqualify themselves from being elected to a full term (or to fill out the second half of a senate seat).

    Let's remember, folks, this is all about good process, not good government.

  • Alex Tinker (unverified)
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    Our energy would be better spent trying to make the normal election process more democratic.

    While the appointment process may be imperfect, it does protect the appointee from becoming beholden to moneyed special interests - at least until they face re-election.

    As it stands now, the #1 correlate to election victory is campaign spending. That's what needs to change.

    If everyone here really is pro-democracy, please, focus your energy on comprehensive campaign finance reform, not changing the process by which a handful of legislators get into seats to complete unexpired terms.

  • LT (unverified)
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    "Actually, I think the current system would be fine - with Dave Porter's caveat: do not permit appointed representatives to run for reelection."

    OK, 2 questions: 1) Let's say people appointed in 2009 could not run in 2010. Would they be able to run in 2012?

    2) a) What specific steps would be required to change the current system of appointment after an election. b) I was involved in a replacement process a little over 2 decades ago when the incumbent died weeks before the election. The incumbent's party then chose to nominate the incumbent's son because it had been such a shock. The challenger's party (D) was required to meet and confirm they still wanted the same nominee. The process was overseen by the Sec. of State office. Challenger won easily, but what if he hadn't?

    My point is that if you want to change the replacement process, all the details of how it would be changed and the possible unintended consequences of a change should be considered. Also, how long has Oregon had this replacement process? What was used before? Why was this process put in place?

    George, about this: "LT, when you refer to the county commissioners of "both parties" in Marion County, which of the three Republican Commissioners do you have in mind?"

    My St. Sen. district includes parts of Marion and Polk counties, and Polk has had Dem. commissioners.

    Lord B:

    US Senators were appointed until the 17th Amendment was ratified in 1913.

  • Miles (unverified)
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    Let's remember, folks, this is all about good process, not good government.

    Good process usually leads to good government, you know that Jack. Not always, but in the long run it does. If you don't believe that, then why not have a benevolent dictator?

    Nck talks about the Wingard example, and he also uses the Mapes' theory of how these appointments are all about realpolitik -- who has the power, who are they giving it to, and what are they getting in return. These are real flaws in the system. Whether or not Chip was the most "qualified" or not, which is totally subjective, the only important thing is whether he would have won a special election or not. Possibly. But had we had an election, maybe Lew Frederick would have run for the Senate? And I don't think you can say with certainty that Chip would have beaten Lew in that district. But Lew had to make the calculation: do I throw my name in for Senate, knowing the power politics that the County commission is going to deal with? Or do I let Chip have "his turn"?

    I don't think the parties should play a role in the replacement process at all. In many districts, neither party represents a majority. Even in those it does, like HD 43, it's not appropriate for the party to make a nomination. Parties are organizing entities, they should not be vested with decision-making authority for all voters since there is no accountability. If I'm a Green Party resident of HD 43 and I don't like the three choices, who do I hold responsible? At least with the County Commissioners I can work to vote them out next election if they choose poorly. But unless I join the Democratic club, I have no ability to hold the PCPs accountable for the decision they made on MY representative.

    For all of these reasons the process should be changed. The only argument against special elections is a fiscal one, and it's wrong to disenfranchise voters simply to save a few hundred thousand dollars.

  • (Show?)

    Let's remember, folks, this is all about good process, not good government.

    Ok Plato, you're right, clearly letting the common folk of the district make the choice of who should represent them could never lead to good government. We should leave those decisions to their superiors who already hold office.

    Seriously though, I don't see why you assume that good process and good government are diametrically opposed. I understand why you personally might feel strongly in favor of county commissioners' role in the process. I also agree with you that Dave and Kari's proposed reform would likely lower the quality of representation.

    But let's simply compare the current process with a special election. Do you believe that the current appointment process truly leads to better representation than holding a special election would? Do county commissioners naturally have a better perspective on who is the most qualified to represent a district than do the district's voters? If the answer is no, then we should switch to special elections to ensure that all residents of a district truly get to choose their representation. If the answer is yes, then the question is why do we hold special elections for the US House and Senate, or even why should we hold any elections for the state legislature at all? Why not just use this process to appoint all legislators if it leads to more qualified and competent representation?

    I think that special elections are inherently better than appointments. If there's any state that has a legacy of instituting democratic (small d) reforms, it's Oregon. I don't think it's enough to say that the current system is fine if there's a better alternative on the table.

    US Senators were appointed until the 17th Amendment was ratified in 1913.

    Nationally yes, but Oregon was the first state to adopt direct election of US Senators by ballot measure in 1907.

  • Great piece (unverified)
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    One of the best written and researched posts I've read here. I'd like to read more from this guy.

  • (Show?)

    Nick, I'm not opposed to special elections in principle, it's just that they cost more and take longer--and for what? My argument is that the current system seems to work well in practice.

    Incidentally, I do think it's different for a United States Senator, of which each state only gets two and the entire country only has 100. I understand historically why a member of the U. S. House cannot be appointed and must be elected while a U. S. Senate vacancy is normally filled by appointment but it really makes no sense.

    For state legislative vacancies, however, I do believe the current system works fine. I do know of a few occasions when there was some basis for complaint, but for the most part I think the system has produced good legislators who represent their districts.

    Also, I don't believe the "reelection" (or more accurately, retainage rate) for appointed incumbents is quit as high as for elected incumbents, although my opinion of this is anecdotal.

  • (Show?)

    It seems to me the only legitimate concerns about shifting to always filling vacancies via special election, is that of expediency and cost. As others have noted up-thread, having the Governor, or no mechanism for assuring party affiliation fidelity in any appointment process is a disaster waiting to happen. Altering the party balance of seats in the legislature by any means other than through a full vote of the constituency within the district is a seriously bad idea, and only invites even worse potential for partisan abuse than the current system of appointments.

    Now is the potential for abuse or conflicts of interests (real or appearances of same) such that it rises to the level of warranting that we less expedient in replacing a vacancy, and incurring significantly more costs?

    I can see both sides of the argument. On principle we should always do what we can to ensure that our representatives in government are in place via the consent of those being governed. But is the hundreds of thousands per special election worth the drain on resources when we are facing cuts in critical services because of the economic crisis compounded by our states broken tax system?

    How many people would that help cover through the Oregon Health Plan? How many teachers would that not lay off? How many nonviolent drug offenders would it cover their treatment instead of even more money to incarcerate? etc. etc.

    There is no easy or clear-cut answer without a down-side.

  • (Show?)

    So, it could be that the current system is "good enough," though not totally satisfying to all. It preserves the party balance determined in the prior full election. It has a check on the party's power by giving the final appointment authority to the County Board of Commissioners, even if none of them lives in the district in question. It also avoids triggering a long non-stop election season; special elections to fill the various recently vacated seats would roll right into the primary season, and only those with the leisure to campaign pretty much full time for a year could afford to take it on.

    Any system depends on the good will and integrity of the people involved. Many of the objections to this system impugn improper motives to the commissioners, or point out that IF improper motives are present the appointment process would provide an opportunity to carry some of them out. That's true of pretty much everything elected officials are given the power to do. I would certainly be angry if I thought they had made an appointment for the wrong reasons; I'm not willing to get excited based on speculation that they might do so in the future. At some point, absent evidence to the contrary, we have to trust our elected representatives to do the right thing.

    The county commissioners can choose whomever they wish, but one would hope that a clear preference shown in a district nominating convention would be an important piece of information in their deliberation.

    I have the same objection to prohibiting an appointee from running for election that I have to legislative term limits. If the incumbent is the best person for the job and willing to serve, the voters should be able to send them back. Besides, newbies are at a distinct disadvantage, and limiting appointees to the unexpired term just means that the district would have relatively inexperienced representation that much longer. Why waste on-the-job training?

  • (Show?)

    "[Appointments]also avoids triggering a long non-stop election season; special elections to fill the various recently vacated seats would roll right into the primary season, and only those with the leisure to campaign pretty much full time for a year could afford to take it on." One need only go back to 1995-1996 to see how those dominoes can fall. Packwood resigned, triggering a special primary and general election for his Senate seat. Wyden won, triggering a special primary and general election for his Congressional seat. Blumenauer won, triggering a special primary and general election for his City Council seat - which was ultimately won by Jim Francesconi. In the space of 11 months, the Portland residents of the 3rd CD voted in three special primaries, three special general elections, 1 regular primary and 1 regular general election - for a total of 8 elections. If you were a Democrat, 7 of those featured hotly contested races (excluding only the CD3 special general.)

  • (Show?)

    Yeah I think I still have a "Vote Earl, Vote Often" button lying around somewhere.

  • Interracial housewives (unverified)
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    "In practice, however, the appointment process is something else. First, having a nominating convention with PCPs effectively means that a completely arbitrary group of people will be selecting the final candidates for the seat. Normally, being a PCP during a non-election year would be a sign of a truly dedicated party member. Not so much in districts with fresh vacancies. Take SD-22, which just appointed Chip Shields to fill out Margaret Carter’s term. A few weeks ago, T.A. described the unusually high number of attendees at the local party meeting: "

    Doesn't seem like a very democratic process.

  • (Show?)

    Kari, that's a fair point about triggering nonstop special elections, but doesn't that example just illustrate how widely we already use special elections at other levels of government? If what happened in 95-96 was such a problem, why don't we just switch to an appointment system for US Senate or Portland City Council vacancies (since federal law would prohibit us from doing so for the US House)?

  • LT (unverified)
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    So Nick, it seems you are saying that we should always have special elections, and if qualified people not already in public office want a chance at such appointments, they should be able to raise the money to run.

    As I recall, there have been some legislative appointments made to people in the Paul Kirk mode--distinguished service, old enough to retire, taking the appointment on the promise that they won't run (maybe the appointment came after some people had already filed?).

    In districts covering more than one county (true in much of the state) special election would mean having enough money to travel the district in primary as well as general election. Is appointment really worse than special elections where the money comes from who knows where incl. lobbyists or independently wealthy candidates?

  • George Anonymuncule Seldes (unverified)
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    "As it stands now, the #1 correlate to election victory is campaign spending. That's what needs to change."

    This is important because it reveals that even those who post and read a political insider's blog don't understand how elections work.

    FACT: Money is NOT the #1 correlate to election victory. Political affiliation is. Money follows the logic of gerrymandered districts as givers in the main want to have given to the winner rather than losers.

    As long as we have partisans drawing district lines, the flood of money to candidates is simply the stench given off by the dead democracy, not the cause of death.

    If you think otherwise, ask yourself how much money would be required to elect republicans in Portland or a Democrat for Walden's seat. Note the absence of statewide Republicans, where they couldn't gerrymander themselves a seat.

    The opposition to special elections and use of the appointment process both reflect the same partisan mindset that says that seats belong to parties rather than to voters, and that voters should not be allowed to have representation that reflects their current preferences if it would inconvenience the partisans.

  • Alex Tinker (unverified)
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    @George

    To say that political affiliation is the #1 correlate to victory in a noncompetitive district is circular - YES, Dems win blue districts and R's win red districts. (I said correlate, not cause.)

    Allow me to be more specific. In competitive districts, spending is the strongest correlate to election results.

    Looking at the last three Congressional elections:

    In 2008, 93% of house races and 94% of senate races were won by the biggest spender.

    In 2006, 94% of house races and 73% of senate races were won by the biggest spender.

    In 2004, 98% of house races and 88% of senate races were won by the biggest spender.

    This is all according to the Center for Responsive Politics.

    Further, the argument many, and at least I, am making is that the special election is extremely likely to result in the same person who won the majority of PCPs' support winning. Hence it being a huge waste of money. The PCP's may not be reflective of the district as a whole, but a candidate's ability to win their support and/or recruit them is very reflective of their campaigning ability.

    The only thing that would make the special election different than the nomination/appointment process is that someone with enough money could broadcast their message more effectively.

    In the case of HD-43, the #1 nominee from the PCP's has already won the vote in the district (albeit for a different race) and it so happens that one of the commissioners is the one he bested (in the district - Cogen, of course, won the race overall).

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